As states and businesses across the United States begin to reopen, businesses need to know whether they will be deemed responsible if an employee contracts COVID-19 at work. Employers face several sources of potential liability, and this article provides guidance on how to limit that risk.

Workers' Compensation Liability

All states have workers' compensation laws. In Maryland, an employee's exclusive right to recovery against an employer for workplace injuries and illnesses or diseases is through a workers' compensation claim. An occupational disease is defined as a disease contracted by an employee: (1) as a result of and in the course of employment; and (2) that causes temporary or permanent incapacity. An employer is liable for an occupational disease only if the disease is "due to the nature of an employment in which hazards of the occupational disease exist" or the disease is known to result from exposure that is attributable to the specific type of employment.

Due to the highly infectious nature of COVID-19, and the breadth of the current public health crisis, exposure to COVID-19 exists in almost all industries. For Maryland and other states with similar occupational disease coverage, COVID-19 is likely to be a compensable workplace illness.

However, workers who claim they contracted COVID-19 at the workplace likely face difficult challenges meeting their burden of establishing that they were exposed at work. A workers' compensation claimant must establish by a preponderance of the evidence that their injury or illness is causally related to their employment. If a business has multiple workers who test positive for COVID-19, the weight of the evidence likely will swing toward the employee.

General Tort Liability

Although most injury claims are excluded by workers' compensation statutes, if an employer knowingly exposes a worker to COVID-19, the employee may have a claim for general tort liability. One such case was already filed in Illinois. In Toney Evans v. Walmart, Inc., a Walmart employee contracted COVID-19 and subsequently died. The estate claims that Walmart knew there were sick employees in the workplace, failed to isolate those employees, did not properly disinfect the store, and failed to follow guidelines from the CDC to prevent spread of the disease. The case was only filed on April 6, 2020, so about the extent of wrongdoing and whether the Plaintiff can establish that the decedent contracted COVID-19 at work remain open questions.

One important exception to the exclusive remedy of workers' compensation is that an employee may sue a co-employee for tortious injury in the workplace. For example: if a healthy employee is exposed to COVID-19 as a result of a co-employee's negligence (e.g., failing to adhere to social distancing or wearing a face covering when required to do so), the co-employee could be liable. In certain contexts, where the employer provides professional liability insurance, the employer may be end up being financially responsible for exposure to COVID-19 even with workers' compensation exclusivity protections.

OSHA Regulations and Administrative Guidance

As Evans v. Walmart, Inc. illustrates, an employer's failure to comply with OSHA, EEOC, CDC, and state-level requirements may expose them to tort liability. At the same time, failure to comply with regulations and guidance on workplace safety can expose a business to enforcement by OSHA, the EEOC, or related local and state bodies. To avoid potential civil enforcement or criminal actions, employers should be familiar with the relevant COVID-19 guidelines.

OSHA, for example, generally requires that: "Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." 29 USC § 654(a)(1). COVID-19 is a recognized hazard. OSHA recently published guidance for employers in establishing safety measures in response to COVID-19. Among other things, all businesses should ensure social distancing, encourage frequent handwashing, limit group interactions to small numbers, and regularly disinfect all surfaces.

To limit exposure and transmission of COVID-19, employers can screen employees for COVID-19 through taking temperatures and testing, question whether employees have any COVID-19 symptoms, require that employees report COVID-19 symptoms to a supervisor, and send sick employees home. Employers are still required to maintain confidentiality of employee health information and must ensure that any testing is accurate and reliable.

Beyond the general safety requirements promulgated by OSHA, employers also have obligations to provide personal protective equipment (PPE) depending on the industry. 29 CFR § 1910 Subpart I. OSHA created four categories of industry and provided guidance for what PPE must be provided.

• Very High Risk – healthcare workers who are directly exposed, either through aerosol-producing procedures, collection of specimens or performing autopsies on patients known or suspected to have COVID-19.

- OSHA recommends wearing gloves, a gown, face shield or goggles, and either a face mask or respirator. Those who work closely with patients known to be or suspected of being COVID-19 positive should wear respirators.

• High Risk – healthcare workers coming into contact, transporting, or examining patients who are known or suspected to have COVID-19.

- OSHA has the same PPE recommendations for High Risk employees as Very High Risk.

• Medium Risk - workers who require frequent and/or close contact (within six feet) of the general public but are not known or suspected to have COVID-19.

- OSHA recommends a combination or selection of "gloves, a gown, a face mask, and/or a face shield or goggles." Rare situations would require this risk group to use respirators. OSHA also contemplates using physical barriers like glass/plastic partitions and sneeze guards.

• Lower Risk – workers who do not require contact with known or suspected COVID-19 patients or frequent or close contact with the general public.

- No recommendations for additional PPE beyond what is normally used in the workplace or required by other order, regulation, or law.

For businesses in the medium risk category, the CDC and OSHA have recommended that additional guards, such as glass or plastic barriers and sneeze guards be used where social distancing is not possible.

Employers are required to provide PPE for their employees and ensure that the PPE meets OSHA requirements. What PPE should be provided in Medium or Lower risk industries? The CDC has stated that N95 respirators should only be used by medical professionals interacting with known or suspected COVID-19 patients. This leaves either surgical masks or less traditional cloth/paper face coverings. Maryland Occupational Safety and Health (MOSH) issued additional guidance regarding what face coverings should be provided to specific industries. For Lower and Medium risk industries in Maryland, surgical masks or cloth/paper coverings can be provided.

Employers reopening their doors to workers and the public need to know how to avoid a COVID-19 problem before it starts. The guidance from the federal and local regulatory agencies provide a good starting point, but each business should assess and address its particular risk factors to minimize potential exposure for workers.

The attorneys at Goodell DeVries advise and represent businesses of all sizes in employment matters and provide regulatory guidance. We continue to assist our clients during the current public health crisis. Please contact Justin Tepe at jtepe@gdldlaw.com for any additional information or questions.

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